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What if commercial tenants violate zoning rules?

QUESTION:

I own a small warehouse in Cape Coral and it has taken me several months to find a tenant. We signed a lease and she opened for business two weeks ago. Now I'm receiving complaints that her business violates zoning laws. It this is true, where does this leave me with my tenant?

ANSWER:

This depends. One of the purposes of zoning laws is to provide for harmonious land uses.

Most zoning laws provide some relief to prevent unnecessary hardship from the strict application of regulations by having procedures for seeking variances. If such a procedure is available and the zoning officials would have authority to grant a variance, then the facts might allow an enforcement of the lease.

Courts have held that if the landlord and tenant both knew at the time they signed the lease that the use was illegal under the zoning laws, the lease is void and unenforceable.

However, when the premises can be used for any number of lawful purposes under the lease, the impact of zoning laws that prohibit some of those uses, but not all, might prevent the lease from being held void.

Also, the lease would not be void simply because the zoning laws restrict the tenant from operating its business the way the tenant wants.

The more common situation is that the landlord and the tenant do not know that the use is not allowed and the lease contains a provision that prohibits the tenant's use of the property for anything illegal. While the lease might not be held void, courts have held the lease would be unenforceable.

A number of cases have held that before a party can claim the lease is void due to a violation of the zoning laws, that party must first make a diligent effort to obtain a variance to have the use allowed. The party wanting to void the lease would not be allowed to avoid their lease obligations unless they first made the diligent effort to obtain a variance.

A good rule of practice to follow is that before the lease is signed, the landlord and tenant should verify that the proposed use under the lease does not violate the applicable zoning laws.

This information is not intended as specific legal advice to anyone and is based upon facts that change from time to time. Individuals should seek legal counsel before acting upon any matter involving the law.

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